POLYGAMOUS MARRIAGE UNDER THE NIGERIAN LAW: WHAT THE LAW HAS TO SAY BY MUHIBUDEEN QOSIM ATANDA

1.0 Introduction

Marriage is, indeed, the legitimate means of securing the right to cohabitate between opposite sexes in an "ideal" territory, Nigeria inclusive. And as a matter of fact, in Nigerian law, there are essentially two types of marriage: monogamous (which wholly depicts one man and one wife) and polygamous (which permits more than one wife married to just one man). It is also worth noting that the character and occurrences in these two marriage systems (monogamous and polygamous) are fundamentally different. In fact, different types of legislation regulate the two systems under the Nigerian corpus juris. Thus, in order to avoid any misunderstanding, it is critical to keep this dualism in mind when considering Nigerian marriage rules.[1]

Monogamous marriage is classified as the statutory recognized marriage in Nigeria. The terms of the Marriage Act,[2] a federal law that applies to all states of the Federal Republic of Nigeria, strictly govern this type of marriage. While on the other hand, a polygamous marriage, is a customary law institution. Hence, the fulcrum of this short essay is geared towards discussing the position of polygamous marriage in Nigeria.

 

2.0 Meaning of Polygamous Marriage

Polygamy, otherwise known as “Polygamous Marriage” or “Polygamous Family”, refers to a type of marriage where a man marries more than one wife as life partners. According to the Blacks Law Dictionary,[3] the term polygamy is defined as “the state or practice of having more than one spouse simultaneously”. It further explains that, polygamy can be simultaneous (if more than one spouse is simultaneously present) or successive (if spouses are married one after the other).[4]

Similarly, according to Rollin M. Perkins, polygamy is defined as a term which is synonymous with “bigamy” and which indicate the simultaneous marriage of two or more spouses.[5] The Oxford Law Dictionary accordingly defined polygamy as “the practice of having more than one spouse”.

 

3.0 Legal Framework on Polygamous Marriage

At the risk of prolixity, it is trite that under the Nigerian law, marriage could either be monogamous or polygamous. Or express differently, marriage could either be statutory marriage or customary marriage. The Statutory marriage is purely monogamous in nature. The husband cannot proceed to marry, after the finalization of the marriage, a second wife at the subsistence of the first marriage.

Conversely, the Customary marriage is one which gives the liberty to the husband to marry more than one wife, either simultaneously or successively. However, it could be still be sub-categorized into Islamic marriage and traditional marriage. That is, customary marriage also include Islamic marriage by the virtue of the Nigerian hierarchical structure and sources of her regulatory laws. Furthermore, it is pertinent to note that under Islamic customary marriage, no man is allowed to marry more than four wives either simultaneously or successively. Howbeit, under the traditional form of customary marriage, there exists no limitation on the number of wives a man is entitled to either jointly or in sequence. Hence, in Nigeria, polygamy is strictly a customary law institution.

Be that as it may, polygamy is a strictly customary form of marriage which does not enjoy any statutory flavor. The fact that a marriage contract was not contracted pursuant to the Marriage Act does not make it illegal or not legally recognized. Likewise, the fact that polygamous marriage is unwelcome under the Nigerian Marriage Act does not ipso facto make it illegal. To this effect, section 35 of the Marriage Act provides thus:

Any person who is married under this Act, or whose marriage is declared by this Act   to be valid, shall be incapable, during the continuance of such marriage, of contracting a valid marriage under customary law; but, save as aforesaid, nothing in this Act contained shall affect the validity of any marriage contracted under or in accordance with any customary law, or in any manner apply to marriages so contracted. {Emphasis added}.

Notwithstanding the fact that polygamous marriage enjoys no statutory instrument, there are still certain conditions precedent to be fulfilled to have a valid subsisting marriage. The conditions precedent may vary from one ethnic practice to the other. Howbeit, there are essential conditions which are common vis-à-vis consent, capacity, bride price or dowry, and formal giving away.[6] Once these are duly complied with, valid customary marriage has been given a life. Once these are duly complied with, a valid customary marriage has been given a life. The husband has no special legal obligation to perform before he can marry another wife. However, subject to the above statutory provisions, he could only contract such subsequent marriage(s) under the same customary arrangement as he did initially.

 

4.0 Conclusion

Flowing from the above, it is very lucid that, in Nigeria, having several spouses is not considered antisocial. A man who wishes to marry multiple wives may do so legally under his native laws and customs (including Islamic law), which permit polygamy.[7] He cannot, however, contract a statutory marriage while a customary marriage is still in force.

 

Muhibudeen Qosim Atanda is a pupil of law at the prestigious Faculty of Law, Bayero University, Kano. He is distinguished for his legal and academic writing prowess.

He can be reached via:

Email: muhibqosim@gmail.com

Phone/WhatsApp: +2349037074761

Website: https://muhibqosim.github.io/my-cv/blog.html

 

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[1] P. A. Akhihiero, ‘An Abridgement of Nigerian Matrimonial Laws and The Church', available at <http://edojudiciary.gov.ng/wp-content/uploads/2016/10/An-Abridgement-Of-Nigeria-Matrimonial-Laws-And-The-Church.pdf> Accessed 30^th April, 2022

[2] Vol.8, Cap.M6, Laws of the Federation of Nigeria, 2004.

[3] Bryan A Garner (Ed), Black's Law Dictionary (8th edn, West Publishing Co 2004) 114.

[4] Ibid

[5] N. Boyce, Criminal Law 458 (3d ed. 1982)

[6] P. A. Akhihiero, op.cit.

[7] C.T Emejuru, ‘Bigamy in a Polygamous Society: A Critical Appraisal of the Law of Bigamy in Nigeria', available at <https://www.researchgate.net/publication/333784200> accessed 30^th April 2022.